United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, District Judge.
Petitioner Juan Garcia moves to vacate his sentence pursuant to 28 U.S.C. § 2255. Garcia also moves for an evidentiary hearing and for the appointment of counsel. The Court holds that Garcia's § 2255 motion was untimely filed more than one year after the date on which his judgment of conviction became final under § 2255(f)(1), and that Garcia has not established that the limitations period began to run on a later date. Accordingly, Garcia's § 2255 motion is denied as untimely. Garcia's motions for an evidentiary hearing and for the appointment of counsel are also denied, and a certificate of appealability will not issue.
A. Offense Conduct
In December 2003, during a routine traffic stop, police discovered approximately 46 kilograms of cocaine and $18, 000 in cash inside of a tractor trailer in Illinois. See May 26, 2005 Presentence Investigation Report ("PSR") ¶ 12. The driver, Jesus Dominguez was arrested and later agreed to cooperate with the Drug Enforcement Administration ("DEA"). Id. Dominguez admitted that he was transporting cocaine from California to New Jersey for Garcia and that, over the course of 12 to 15 trips, he had previously transported more than 1, 000 kilograms of cocaine and approximately $20 million in drug proceeds for Garcia. Id. ¶¶ 12, 14. The DEA subsequently obtained court-authorized wiretaps on cellular telephones used by Garcia and several other members of the drug trafficking organization in which he was involved (the "DTO"). Id. ¶ 15.
Garcia was arrested at his California residence in July 2004. Id. ¶ 20. At the time of his arrest, Garcia waived his Miranda rights and gave a post-arrest statement in which he admitted that he was responsible for coordinating the transportation of approximately 600 kilograms of cocaine and $11 million in drug proceeds between the East and West Coasts. See Dkt. No. 11, Declaration of Emil J. Bove III, Pt. 1 ("Bove Decl., Pt. 1"), Ex. A.
B. Indictment, Discovery, Motion to Suppress, and Guilty Plea
In September 2004, Garcia and four co-defendants were charged by superseding indictment with conspiring to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. That same month, the Government produced to Garcia's counsel, David Arredondo, discovery in the form of, inter alia, 16 wiretap applications and interception orders, 26 discs containing communications intercepted pursuant to those orders, and summaries of the intercepted communications. See Dkt. No. 11, Bove Decl., Pt. 1, Ex. B. The Government also provided copies of the discs containing intercepted communications to the Metropolitan Correctional Center so that Garcia could review them on his own. See Bove Decl, Pt. 1, Ex. C.
In January 2005, Garcia moved to suppress the wiretap communications intercepted by the Government. Garcia argued that the Government had not established the wiretaps were necessary because it had failed to disclose the existence of an individual named Jose Parra, who was purportedly both a high-level member of the DTO and a confidential informant. See Bove Decl., Pt. 1, Ex. D. In an affidavit filed in support of the motion, Arredondo described the basis for his belief that Parra was both a member of the DTO and a confidential informant. See Dkt. No. 12, Declaration of Emil J. Bove III, Pt. 2 ("Bove Decl., Pt. 2"), Ex. E.
In March 2005, this Court denied Garcia's motion to suppress. The Court found that Garcia's theory that Parra had been acting as a confidential informant "lack[ed] any evidentiary support and [was] impermissibly based upon conjecture without personal knowledge." United States v. Garcia, No. 04 CR. 603(HB), 2005 WL 589627, at *12 (S.D.N.Y. Mar. 14, 2005).
That same month, Garcia pled guilty, without a plea agreement, to conspiring to distribute five kilograms and more of cocaine. See Bove Decl, Pt. 2, Ex. F.
C. Trial of Garcia's Co-Defendants
In May 2005, three of Garcia's co-defendants were convicted of the same offense as Garcia following a jury trial. The Government's case-in-chief included numerous calls intercepted during the course of its investigation-including calls involving Garcia-as well as testimony regarding those calls. As relevant to this case, Special Agent Michael Keuler of the DEA testified regarding an intercepted call involving Garcia that occurred on May 13, 2004. See Dkt. No. 13, Declaration of Emil J. Bove III, Pt. 3 ("Bove Decl., Pt. 3"), Ex. G at 552-613. During the call, Garcia and an individual whom he variously referred to as "Joe, " "Joey, " and "Jose" appeared to discuss a debt that a third person owed to the DTO as a result of his being supplied with cocaine. See id. ; see also Dkt. No. 14, Declaration of Emil J. Bove III, Pt. 4 ("Bove Decl., Pt. 4"), Ex. J (transcript of May 13, 2004 call).
In Garcia's PSR, the Probation Office determined that Garcia's offense involved more than 150 kilograms of cocaine, which corresponded to a base offense level of 38 under U.S.S.G. § 2D1.1(c)(1). See PSR ¶ 22. The Probation Office also determined that Garcia was an organizer or leader of criminal activity involving five or more participants, thus warranting a four-level increase pursuant to U.S.S.G. § 3B1.1(a). Id. ¶ 25. After subtracting three levels for acceptance of responsibility, the Probation Office calculated a Guidelines range of 292 to 365 months' imprisonment based on a total offense level of 39 and a Criminal History Category of II. Id. ¶ 63.
At sentencing in July 2005, Mr. Arredondo confirmed that he had no objections to the facts as described in the PSR. See Bove Decl., Pt. 4, Ex. M at 9. Mr. Arredondo objected, however, to the application of a four-level leadership enhancement. See id. at 11-12, 14-16, 19. While conceding that Garcia "did exercise the aspect of the venture having to do with the transportation, " id. at 11, Mr. Arredondo asserted that Garcia was "not the owner of the drugs" and that he "participated in one small aspect" of the conspiracy, id. at 11, 19. In response to this argument, the Government referred to, inter alia, the "numerous wiretaps [the Court] heard [at the trial of Garcia's co-defendants], many of which involved the voice of... Garcia directing those subordinate to him... in the movement of cocaine." Id. at 23.
After the Court asked Arredondo whether Garcia had offered to participate in a proffer with the Government, ...